Citation Nr: 0600281
Decision Date: 01/06/06 Archive Date: 01/19/06
DOCKET NO. 03-15 625 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Entitlement to service connection for a right knee
disability, claimed as secondary to the service-connected
bilateral tibial stress fractures.
2. Entitlement to an increased (compensable) rating for the
service-connected left chondromalacia patella.
3. Entitlement to an initial rating in excess of 30 percent
for the service connected post-traumatic stress disorder
(PTSD) from January 31, 2002; and in excess of 50 percent for
the service-connected PTSD from October 23, 2003.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. Cryan, Counsel
INTRODUCTION
The veteran had active service from May 1968 to September
1969 and from June 1971 to May 1980.
This case is before the Board of Veterans' Appeals (Board) on
appeal from June 2002 and January 2003 rating decisions by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Boise, Idaho.
In the June 2002 rating decision, the RO denied an increased
(compensable) rating for the service-connected left
chondromalacia patella, denied an increased (compensable)
rating for the service-connected bilateral tibial stress
fractures, and denied service connection for diabetes,
hearing loss, tinnitus, PTSD, and a right knee disability.
In his July 2002 Notice of Disagreement, the veteran
specifically disagreed with the denials of service connection
for diabetes, hearing loss, tinnitus, PTSD and a right knee
disability, but did not specifically disagree with the denial
of an increased (compensable) rating for the service-
connected bilateral tibial stress fractures. However, the
veteran appeared to appeal the issue of entitlement to a
compensable rating for the service-connected left
chondromalacia patella. In the January 2003 Statement of the
Case (SOC) , the RO included the issues of service connection
for diabetes, hearing loss, tinnitus and a right knee
disability, as well as the issue of entitlement to an
increased (compensable rating) for the service-connected
chondromalacia patella
The January 2003 rating decision granted service connection
for PTSD, and assigned an initial 10 percent rating,
effective from January 31, 2002. The veteran's NOD with that
decision was received at the RO in March 2003. The NOD was
also accepted as a claim for an increased rating for the
service-connected bilateral tibal stress fractures and it was
also accepted in lieu of a VA Form 9, substantive appeal as
to the issue of an increased (compensable) rating for the
service-connected left chondromalacia patella.
The veteran perfected his appeal as to the issue of service
connection for a right knee disability with the submission of
a timely substantive appeal (VA Form 9), which was received
at the RO in June 2003.
In a March 2004 rating decision, the RO increased the initial
rating for the service-connected PTSD to 30 percent from
January 31, 2002 and to 50 percent from October 23, 2003. As
the award is not a complete grant of benefits, the issue
remains in appellate status. See AB v. Brown, 6 Vet. App. 35
(1993). As such, an SOC with regard to the issue of
entitlement to an initial higher rating for the service-
connected PTSD was issued to the veteran in March 2004. The
veteran thereafter submitted a timely substantive appeal (VA
Form 9) which was received at the RO in March 2004.
In a June 2003 statement received, the veteran withdrew his
appeal as to the issues of service connection for hearing
loss and tinnitus, and as such, did not thereafter submit
substantive appeals as to those issues. Although the veteran
did not specifically withdraw his appeal as to the issue of
service connection for diabetes, he did not submit a timely
substantive appeal as to that issue.
However, in December 2003, the veteran requested that his
claim of service connection for diabetes be reopened. In an
April 2004 rating decision, the RO reopened the veteran's
claim, but denied the claim because the record did not
reflect a current diagnosis of diabetes. The April 2004
rating decision also denied the veteran's claim for
entitlement to a TDIU and for increased (compensable) ratings
for the bilateral tibial stress fractures. To the Board's
knowledge, the veteran has not appealed that these issue.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran seeks service connection for a right knee
disability, claimed as secondary to the service-connected
bilateral tibial stress fractures. The veteran also seeks a
compensable rating for the service-connected left knee
chondromalacia patella, and an increased initial rating for
the service-connected PTSD, rated as 30 percent disabling
from January 31, 2002 and 50 percent disabling from October
23, 2003.
In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held
that the term "disability" as used in 38 U.S.C.A. §§ 1110,
1131, refers to impairment of earning capacity, and that such
definition of disability mandates that any additional
impairment of earning capacity resulting from an already
service-connected condition, regardless of whether or not the
additional impairment is itself a separate disease or injury
caused by the service-connected condition, shall be
compensated. In light of the Allen case, the RO/AMC must
consider first, whether the veteran has a right knee
disability; and if so, then the RO/AMC must consider whether
the veteran's right knee disability is aggravated by the
service-connected bilateral tibial stress fractures.
Currently, it is unclear whether the veteran has a right knee
disability. However, a review of the record reflects that an
Axis III diagnosis of bilateral osteoarthritis of the knees
was noted on a November 2002 mental health progress report.
The veteran asserts that his service-connected left
chondromalacia patella is more severe than is currently
represented by the noncompensable rating assigned. As noted
above, the record reflects that the veteran has a diagnosis
of right knee osteoarthritis. However, the diagnosis is
listed as an Axis III diagnosis on a mental health progress
note from November 2002. The record does not contain any x-
ray reports to confirm the diagnosis. The Board finds that a
VA examination of the right and left knees is necessary.
The record shows that the veteran's Global Assessment of
Functioning (GAF) scores are in the 40's for his PTSD.
Furthermore, the veteran has recently asserted that he places
a pistol under his head when he sleeps, that he has thoughts
of suicide, cannot remember names of people he knows, has a
short temper and paranoid thoughts of being followed in
public places. However, the last VA examination in January
2004 notes that the veteran reported that he separated his
shells from his guns, and locked the shells in his gun
cabinet. Furthermore, the examiner noted that, in spite of
his symptoms, the veteran volunteered with the American Red
Cross, was an active member of three veterans organizations,
did genealogical research, and worked one night per week at a
family history center. The veteran also reported that he and
his wife would like to go on a full-time mission for the LDS
church.
In sum, the medical, and other, evidence of record is
contradictory, and as such, Board finds that additional
development is necessary before a decision on the merits can
be reached. In light of the foregoing, the Board finds that
the veteran should be afforded another VA examination to
determine the current nature, extent and severity of the
service-connected PTSD.
Accordingly, the case is REMNADED to the RO/AMC for the
following action:
1. The RO/AMC should take appropriate
action to contact the veteran in order to
request that he identify the names,
addresses, and approximate dates of
treatment for any VA and non-VA health
care providers who treated him for a
right knee disability and/or the service-
connected left chondromalacia patella
and/or the service-connected PTSD. After
obtaining any necessary authorization
from the veteran, the RO/AMC should
attempt to obtain copies of pertinent
treatment records identified by the
veteran in response to this request,
which have not been previously secured.
All VA treatment records, not previously
secured, should be obtained. Once
obtained, all records must be associated
with the claims folder.
2. After completion of #1 above, the
veteran should be afforded a VA
orthopedic examination to determine the
current nature, extent, and
manifestations of the veteran's service-
connected left chondromalacia patella as
well whether the veteran has a right knee
disability. All indicated x-rays and
laboratory tests should be completed.
The claims file should be made available
to the examiner(s) prior to the
examination(s).
The orthopedic examiner(s) should be
asked to provide specific comments as to
whether the veteran has current right
knee osteoarthritis and/or other right
knee disability; and if so, whether there
is any relationship between the veteran's
service-connected bilateral tibial stress
fractures and any current right knee
disability. The appropriate examiner
should also indicate if the veteran's
service-connected bilateral tibial stress
fractures aggravate any current right
knee disorder, and, if so, what level of
disability is attributable to
aggravation. All medical opinions must
be accompanied by a complete rationale
based on sound medical principles.
The orthopedic examiner should also
determine the current nature, extent and
severity of the service-connected left
chondromalacia patella, including, but
not limited to, determining whether the
veteran has objective evidence of
arthritis of the left knee. All
indicated x-rays and laboratory tests
should be completed. The claims file
should be made available to the examiner
prior to the examination. The examiner
should perform range of motion testing
with regard to the service-connected left
knee disability to determine if the
veteran has additional functional
limitation due to pain. These tests
should include a complete test of the
range of motion of the affected joints.
All findings should be reported. The
examiner(s) should also be asked to
determine whether the left knee exhibits
weakened movement, excess fatigability,
or incoordination attributable to the
service-connected disability; and, if
feasible, these determinations should be
expressed in terms of the degree of
additional range of motion loss due to
any weakened movement, excess
fatigability, or incoordination. The
examiner should be asked to express an
opinion on whether pain could
significantly limit functional ability
during flare-ups or when the left knee is
used repeatedly. It should also, if
feasible, be portrayed in terms of the
degree of additional range of motion loss
due to pain on use or during flare-ups.
3. After completion of the above,
schedule the veteran for a VA psychiatric
examination to determine the current
level of his service connected PTSD. The
claims folder must be made available to
the examiner for review before the
examination. Detailed clinical findings
should be reported in connection with the
evaluation. The examiner should report a
full multiaxial diagnosis, to include the
assignment of a global assessment of
functioning (GAF) score consistent with
the American Psychiatric Association's
Diagnostic and Statistical Manual for
Mental Disorders (DSM-IV) and an
explanation what the assigned score
represents. In addition, the examiner
should state an opinion as to the degree
of occupational and social impairment
caused by the veteran's service-connected
PTSD, and in particular, should address
the veteran's assertions in light of his
volunteer work and social activities as
noted on the January 2004 VA examination
report.
4. The RO/AMC should then readjudicate
the veteran's claims for entitlement to
service connection for a right knee
disability and for increased ratings for
the service-connected PTSD and the
service-connected left chondromalacia
patella. The RO should specifically
consider whether the veteran has a right
knee disability that is aggravated by the
service-connected bilateral tibial stress
fractures, taking into consideration the
provisions of 38 C.F.R. § 3.310(a) and
the directives set forth in Allen
regarding aggravation. If any action
taken is adverse to the veteran, he and
his representative should be furnished a
supplemental statement of the case that
contains a summary of the relevant
evidence and a citation and discussion of
the applicable laws and regulations. He
should also be afforded the opportunity
to respond to that supplemental statement
of the case before the claim is returned
to the Board.
Thereafter, the case should be returned to the Board for the
purpose of appellate disposition, if in order. The Board
intimates no opinion as to the ultimate outcome of this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).